The Doctrine of Legality and Municipal Accountability: A Case Analysis

The Underlying Principle

The doctrine of legality is a cornerstone of constitutional democracy, ensuring that the exercise of public power is consistent with constitutional principles. In public law, this doctrine serves to –

• Ensure that public power is exercised in accordance with the Constitution;
  
  
• Require compliance with specific duties and obligations in the exercise of public authority; and
  
  
• Uphold the rule of law to promote fair and effective governance.

When the state exercises constitutionally mandated public powers and functions, it has an active duty to perform these obligations timeously and in the public interest. The doctrine of legality aligns with the maxim ubi jus ibi remedium (where there is a right, there is a remedy). This principle ensures that where the law confers powers and duties upon the state, it simultaneously grants corresponding rights to the public. Where these rights are violated, affected individuals may approach the courts for enforcement.

The recent case of Kunogqala Local Residents and Others v AB Xuma Local Municipality (Eastern Cape) offers a compelling illustration of the doctrine of legality and its implications for local municipalities that fail in their service delivery obligations.

This article examines the doctrine of legality, the Kunogqala case, and the consequences municipalities may face when they fail to fulfil their constitutional mandates.

THE DOCTRINE OF LEGALITY EXPLAINED

The doctrine of legality requires that all state actions remain within the confines of the law. It embodies the principle that no public authority is above the law and that governmental decisions must always be legally justified.

In public administration, this doctrine ensures accountability, preventing arbitrary or unlawful exercise of power. It serves as a safeguard against governmental inaction in fulfilling statutory duties.

THE KUNOGQALA CASE

Facts

• The applicants, representing the Nogqala Village community, endured decades of hardship due to the absence of a functional access road and an incomplete bridge connecting their village to nearby towns such as Ngcobo and Ugie.
  
  
• This lack of infrastructure hindered access to essential services, including healthcare, education, banking, and economic opportunities. During the rainy season, the river became impassable, causing schoolchildren to miss classes or drop out entirely and compelling residents to undertake arduous journeys, even for dignified rites such as funerals.
  
  
• Despite multiple complaints and unfulfilled municipal promises – most recently in March 2023 – the Ab Xuma Local Municipality (“Municipality”) failed to construct the access road.

Legal Proceedings

• The applicants sought a court order compelling the Municipality to commence construction within 30 days of the order and complete the project within 120 days. In the event of non-compliance, they requested that the Municipality provide a full explanation to the court.    
  
  
• The applicants relied on constitutional and legislative provisions, including –
  
  
  • Sections 152 and 156, along with Part B of Schedule 5 of the Constitution; and
    
    
  • Sections 83, 84, and 184 of the Local Government: Municipal Structures Act, 117 of 1998.          
    
    
• These provisions confer upon local governments the responsibility to manage municipal roads.  
  
  
• The Municipality cited budgetary constraints as a defence. However, the court found this unconvincing, given the prolonged consultations on the matter and the Municipality’s failure to account for the road in previous budgets.   
  
  
• The court ordered the Municipality to take all necessary steps to commence and complete the access road and to report to the applicants on progress within 180 days, with further updates every 90 days.  
  
  
• In granting this relief, the court cited the doctrine of legality and the Municipality’s unjustified delay in fulfilling its obligations.

Key Legal Issues Considered

• Municipal Obligations – The court noted that the Municipality had acknowledged its competence to construct the access road. It reaffirmed that public powers and functions must be performed timeously and in the public interest.
  
  
• Constitutional Values Informing Public Administration – The court cited constitutional principles, highlighting that municipalities must act diligently, ethically, and in a development-oriented manner that is responsive to community needs. The Municipality’s prolonged inaction, despite its awareness of the issue, was deemed unlawful, unjustifiable, and unconstitutional.      
  
  
• The Role of the Court – Where municipalities fail to fulfil their statutory obligations, courts will intervene to enforce compliance and ensure accountability.

Application of the Doctrine of Legality

The court underscored its duty to uphold the doctrine of legality. It found that the Municipality’s failure to construct the access road constituted an unlawful omission requiring judicial intervention.

IMPLICATIONS FOR MUNICIPALITIES

Unjustified Delays Will Not Be Tolerated

• Courts will not look favourably upon municipalities that persistently fail to act despite awareness of their obligations.     
  
  
• Where delays remain unexplained, courts will enforce compliance with the law.
  
  
• Budgetary constraints will not excuse persistent inaction without a satisfactory justification.         
  
  
• Courts may order municipalities to act and report on their progress to affected parties or the court itself.

Lessons for Citizens

• Engaging Municipal Officials – Citizens adversely affected by municipal inaction should formally engage municipal officials and demand compliance with public duties.
  
  
• Maintaining a Record – Residents should document their interactions with municipal authorities, including meeting minutes and written acknowledgments of obligations. Such records strengthen cases brought before the courts.

THE ROLE OF LEGAL COUNSEL

Legal professionals can assist in navigating municipal compliance by –

• Facilitating engagement between affected parties and municipalities;        
  
  
• Documenting all relevant interactions;          
  
  
• Advising on enforcement of statutory duties;
  
  
• Representing clients in legal proceedings against municipalities.

CONCLUSION

The Kunogqala case underscores the importance of municipalities adhering to their constitutional duty of effective and accountable governance. The doctrine of legality ensures that no entity is above the law and that courts will not tolerate unlawful conduct. Municipal non-compliance may be challenged not only by individuals but also by businesses and other affected parties.

For assistance with municipal non-compliance or related legal matters, contact Bishop Fraser Attorneys for expert guidance.